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State of New Jersey v. Loc Van Nhan


March 5, 2012


On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-08-2452.

Per curiam.


Submitted December 5, 2011 -

Before Judges Sabatino and Ashrafi.

Defendant Loc Van Nhan appeals from his conviction by a jury on charges arising out of a brutal attack and robbery of an elderly woman. He also appeals from his seventeen-year sentence of imprisonment. We affirm.


In August 2008, a grand jury in Camden County indicted defendant on charges of first-degree robbery (counts one and two), N.J.S.A. 2C:15-1; third-degree possession of a weapon for an unlawful purpose (count three), N.J.S.A. 2C:39-4d; fourth-degree unlawful possession of a weapon (count four), N.J.S.A. 2C:39-5d; second-degree aggravated assault (count five), N.J.S.A. 2C:12-1b(1); and third-degree aggravated assault (count six), N.J.S.A. 2C:12-1b(2). The primary defense at trial was mistaken identification of the assailant. The jury convicted defendant on all counts.

On appeal, defendant raises the following arguments:















Before addressing these arguments, we will recount the pertinent trial testimony.


The victim of the assault and robbery was sixty-nine-year-old T.T., a Vietnamese immigrant who lived with her husband in Camden. In March 2007, defendant arrived at her apartment and asked to stay there. Defendant and his wife stayed in T.T.'s apartment for several months and then moved into another apartment in the same building. T.T. testified that defendant eventually left the building, but that he returned four or five days later, on September 12, 2007, and assaulted her while she was working outside in her garden.

T.T. could not see the assailant at first because he attacked her from behind. She testified as follows:*fn1

Q: . . . . How did he attack you?

T.T.: I . . . sit on . . . the ground and I pull . . . one vegetable. And then I ready to pull the second one and then he attacked me on my head. And at the moment, I went a big head like this.

The stick . . . had like three branches and had the . . . metal on the stick that he hold*fn2 . . . .

And then I saw him and I told, "You hit me, Loc." And then I stood up.

I stood up and I ran. I didn't run . . . to the street, the road, but I ran inside . . . I tried to run into the house.

Q: And what happened as you tried to run into the house?

T.T.: The object . . . that was mine in the garden and he used that object with the metal . . . to hit me.

The victim also testified that defendant took money that fell to the ground from her person.

T.T.: And . . . at the moment, my money fall down right at his feet on the floor.

Q: Okay. Where . . . was your money?

T.T.: [M]y money, I put in the pocket right here. I put it inside like this because I . . . saved that money to buy the airline ticket to go to Vietnam.

Q: Okay. And did you always keep your money there?

T.T.: [S]ometime, I put it in the . . . inside . . . of my body.

Q: How much money did you have on you the day that you were attacked?

T.T.: One thousand eight hundred dollars.

Q: Okay. And when he hit you, you said "The money came out?"

T.T.: I . . . don't know how. How can . . . it fall down, I don't know. I cannot figure out how.

She testified that defendant continued the assault after he took the money.

Q: What happened after he took the money?

T.T.: After he got the money, I fall down on the floor.

Q: And --

T.T.: And then . . . after that, he left and then he came back . . . he hit my head on the rail on the stone.

Q: Okay. And then, can you tell us what happened after that point?

T.T.: [H]e hit my head on that hole and . . . he tried to attack on my head again.

Q: Okay. Was that after he had left and then came back again?

T.T.: Yes.

Q: Okay. And can you describe what else, if anything, might have happened after that point?

T.T.: He pulled me to the hole. He . . . pulled me to that . . . I use that hole for growing . . . the vegetables. He hit on my head to that hole. And then the blood come out and then police saw that.

And he . . . tried to use his head [sic] to push my head into the hole . . . Q: How did he try to put your head in a hole . . . can you describe that?

T.T.: After that, I was . . . unconscious. And my son told . . . me what happened after that because I was unconscious at the moment.

Q: When . . . you regained consciousness, where were you?

T.T.: I didn't know anything. He used his head to push my neck down. And then I . . . awake. I tried to . . . help myself. He . . . pushed my head to my neck . . .

I tried to help myself at the moment. I use a stick and I tried to hit like this . . .

Q: At that time, could you see if there was anyone else around?

T.T.: Nobody. I . . . tried to crawl . . . from here to the door. Nobody . . . could see me . . . And then the neighbor came and somebody tried to call the police. Q: To your knowledge, at that time, was [defendant] still there?

T.T.: No, he's not there.

The victim stated she recognized defendant during the assault.

Q: Okay. Now, during the course of the assault, you said, "You screamed out, Loc." My question is, did he say . . . anything in response?

T.T.: I don't know if he said something or not. I didn't know. So when he . . . pushed me on my neck . . . I still can recognize him at . . . that time.

Captain Agripino Figueroa of the City of Camden Fire Department testified that a woman stopped him looking for help. He then saw an injured person, and he called for an ambulance. He described the victim's injuries as "blood from the mouth area. Also, blood coming from the scalp, somewhere in . . . her head. She had an open wound there. The blood was pulsating out as . . . I was standing there." Figueroa further testified that he "walked up to the residence and [he] saw a trail of blood that was leading up the steps which led to a front yard. And the blood led up the sidewalk . . . towards the front door of the house." Figueroa described that "there was a garden. And there was blood and some stones, or large rocks that had blood on it."

Sharon Dickel, a paramedic, arrived in response to the call for emergency assistance. She testified the victim was in a trauma and had "bruising on her face, above the eye. She had minimal bleeding, but big bruises on her face." Additionally, Dickel noted that "she was semi-conscious, not really responding to [emergency personnel]. I mean, she would open her eyes when we called her name . . . but she wouldn't respond to us."

Dr. Richard Burns, a trauma surgeon, treated the victim at Cooper Hospital. The prosecution called Dr. Burns to testify as a fact witness, not as an expert. He stated that upon her arrival, the victim was intubated to assist her breathing and to manage her pain, and the medical staff obtained x-rays and CAT scans. She had a skull base fracture and multiple facial bone fractures. "[T]he front part of her face was broken off from the rest of her skull." A plastic surgeon performed an Open Reduction Internal Fixation where "the skin . . . everything was opened up and . . . screws and hardware were placed in these areas to . . . restabilize the face." T.T. remained at the hospital for treatment from September 12 to October 27, 2007.

T.T.'s in-court identification of defendant on direct examination included some initial uncertainty:

Q: The person that you saw that attacked you, do you see them in court here today?

T.T.: He's right there. But, now, he . . . get so white and so fat. Now I . . . cannot recognize him, but . . . he white and he fat.

Q: Let the record reflect --COURT: I'm not satisfied[.]

Q: Is the person in court the same person who lived with you in your house?

T.T.: That person . . . I don't know why today . . . he fat and he white.

Q: Okay. Is there any doubt in your mind that the person in court today is the person that attacked you?

T.T.: Can you please let me come close to him and look at him carefully . . . so that I recognize him?

The victim was permitted to approach defendant in the courtroom. As she stood near, the victim spoke to defendant:

T.T.: Why you are so fat and so white today? (T.T. speaking to defendant).

The court sustained defense counsel's objection to the witness addressing defendant personally. T.T. then confirmed her identification of defendant as her assailant:

Q: Is the person you pointed to earlier the same person that attacked you?

T.T.: Yes.

Defense counsel cross-examined the victim on identification as follows:

Q: Do you remember when you . . . came up to counsel table?

T.T.: Yes.

Q: And you were standing right about where I'm standing now?

T.T.: Yes.

Q: And you looked at [defendant] . . . and you spoke to him correct?

T.T.: Yes.

Q: And although I do not speak Vietnamese, I believe you asked him, "If he, in fact, was Loc Nhan," is that accurate?

T.T.: Yes.

Defendant was the only witness in the defense case. He denied attacking the victim and stealing money from her. He testified he was unaware that she carried money, and he had never argued with her and had treated her like a parent. Defendant stated he was in Cape May when the attack occurred, which was where he was living at that time. However, he also testified he still maintained his residence at the building where T.T. lived.

After the jury found defendant guilty on all counts, the court sentenced him on November 13, 2009. Counts two, three, five, and six were merged with count one, first-degree robbery. On count one, defendant was sentenced to seventeen years imprisonment, with eighty-five percent of the sentence to be served before eligibility for parole and five years of parole supervision pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. On count four, unlawful possession of a weapon, defendant was sentenced to eighteen months imprisonment to run concurrently with the seventeen-year sentence.


Because the testimony of the victim was crucial to identification of defendant as her assailant, we begin by addressing Point IV of defendant's arguments regarding her competency as a witness.

"The general rule is that all persons are qualified to testify as witnesses, so long as they are competent to do so." State v. R.W., 104 N.J. 14, 19 (1986). Disqualification of a witness on grounds of incompetence is an exception. State v. G.C., 188 N.J. 118, 133 (2006); Germann v. Matriss, 55 N.J. 193, 217 (1970). N.J.R.E. 601 provides:

Every person is competent to be a witness unless (a) the judge finds that the proposed witness is incapable of expression concerning the matter so as to be understood by the judge and jury either directly or through interpretation, or (b) the proposed witness is incapable of understanding the duty of a witness to tell the truth, or (c) except as otherwise provided by these rules or by law.

"The determination of whether a person is competent to serve as a witness lies within the discretion of the court." State v. Krivacska, 341 N.J. Super. 1, 36 (App. Div.), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002). To determine whether a witness is competent, a trial court may, but is not obligated to, conduct a hearing outside the presence of the jury pursuant to N.J.R.E. 104(a).

Defendant argues that the victim suffered head trauma and had difficulty remembering facts, and that the court should have ordered medical and psychological examinations and conducted a preliminary hearing regarding the results of those examinations before allowing her to testify. In a related context, the Supreme Court has stated: "The practice of granting psychiatric examinations of witnesses 'must be engaged in with great care' and 'only upon a substantial showing of need and justification.'" R.W., supra, 104 N.J. at 21 (quoting State v. Butler, 27 N.J. 560, 605 (1958)). "In order to satisfy the 'substantial need' criterion for a psychiatric examination, there must be a showing of some deviation from acceptable norms, such as an identifiable or clinical psychiatric or similar disorder, beyond the realm of those human conditions that ordinary experience would confirm as normal." Id. at 22.

Defendant did not request any professional examinations of the victim at or before the time of trial and, therefore, must show that it was plain error to allow her to testify at the trial without being so examined. R. 2:10-2. According to the testimony of Dr. Burns, T.T. did not suffer brain injury as a result of the assault. In her own testimony at trial, the victim was able to provide detailed information about the attack. Although the translation into English and her lack of memory about some events created obstacles to a clear understanding of her testimony, those shortcomings did not disqualify her as a witness. Just as the credibility of any witness may be challenged with deficiencies in the witness's recollection or perception of events, the victim's knowledge and recollection were fully explored before the jury on both direct and cross examination. She indicated no uncertainty that her assailant was the man who had stayed in her apartment and building for some months. According to her testimony, she was only unsure that the man in the courtroom was that same person because she perceived changes in his appearance. The weight and probative value of her identification of defendant was for the jury to determine.

There was no error in allowing the victim to testify without first holding a competency hearing.


In Points V and VI of his brief, defendant asserts that the court erred when it admitted the victim's out-of-court identification of defendant and when it recognized as an established fact in its jury charge that she had identified defendant, thus prejudicing the defense of misidentification. These arguments, too, are subject to the plain error standard of review because defendant did not object or otherwise raise the issues in the trial court.

The State did not conduct an out-of-court identification procedure with the victim. Rather, defendant complains that her statement to the police naming defendant was unreliable. He contends that her testimony was based on an impermissibly suggestive identification of defendant, even though she knew him. As we have stated, the reliability and credibility of the victim's identification of her attacker was a question for the jury to decide. The cases implicating suggestive out-of-court identification procedures, including State v. Henderson, 208 N.J. 208, 302 (2011), and State v. Delgado, 188 N.J. 48, 50, 59 (2006), are simply not applicable to the facts of this case.

With respect to the jury instructions, defendant does not challenge the contents of the court's instruction pertaining to the victim's identification of defendant in the courtroom. He complains that the trial judge began that instruction by stating the witness had identified defendant as her assailant. Defendant attaches undue weight and meaning to that introduction and argues that the judge should have added comments immediately about the weaknesses of the victim's identification.

The judge's instruction was in conformity with the model jury charge on identification evidence.*fn3 Indeed, the judge gave balanced instructions employing the language of the model charge and informing the jury of the factors to be considered in assessing the reliability and weight of the victim's identification of defendant. There was no error in the court's identification instruction to the jury.


In Points I and II of his brief, defendant argues that the evidence was insufficient to convict him of the charges both because the victim's testimony was unreliable and, specifically as to the robbery charges, because there was no evidence that the assault occurred with intent to steal money or property from the victim.

The standard applicable to a motion for a judgment of acquittal at the conclusion of the State's case is set forth in State v. Reyes, 50 N.J. 454, 458-59 (1967):

[T]he question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

The trial court "'is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State.'" State v. Papasavvas, 170 N.J. 462, 521 (2002) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)). "If the evidence satisfies that standard, the motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004).

N.J.S.A. 2C:15-1 sets forth the elements of robbery:

a. Robbery defined. A person is guilty of robbery if, in the course of committing a theft, he:

(1) Inflicts bodily injury or uses force upon another; or

(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or

(3) Commits or threatens immediately to commit any crime of the first or second degree.

An act shall be deemed to be included in the phrase "in the course of committing a theft" if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission.

b. Grading. Robbery is a crime of the second degree, except that it is a crime of the first degree if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon. [Emphasis added.]

Robbery is a specific intent crime, and requires proof of the intent of the defendant to commit a theft. State v. Lopez, 187 N.J. 91, 98 (2006). "[W]ithout the intention to steal evidenced by a theft or attempted theft, there can be no robbery." Ibid.

New Jersey does not recognize "afterthought" robbery. "[O]ur statute requires that the threats or violence be carried out in furtherance of the intention to commit a theft. Indeed, the sequence of events is critical; the intention to steal must precede or be coterminous with the use of force." Id. at 101; see Model Jury Charge (Criminal), "Robbery in the First Degree" (2010) ("[T]he defendant must have formed the intent to commit a theft before or during his use of force. If you find the defendant formed the intent to commit a theft after his use of force, then he cannot be found guilty of robbery.").

At the conclusion of the State's case, defendant moved to dismiss the two robbery charges, arguing that the prosecution's evidence at best showed an afterthought robbery because "the intent to take the money was not formed until after the force was used." The trial judge denied defendant's motion, stating:

[W]hile there's been no specific testimony presented that there was the intent to commit the robbery, in other words, there was no direct proof presented, I'm satisfied the jury could draw the inference, from the testimony, that because of the defendant's relationship with the victim, that they lived together for a period of time and she was saving the money for a plane ticket to go back to Vietnam, that she always carried the money with her, that he was aware of that and, therefore, he had that intent when he attacked her in the garden.

The victim also testified that after the money fell, he continued to use force against her . . . in hitting her again, pushing her head into the hole.

Therefore, I think really it is a jury question. And I think from the evidence presented at this point, the jury could find that. And for that reason, I'm [going to] deny the motion at this time.

We agree with these conclusions. The State presented sufficient evidence for a reasonable jury to find that defendant "formed the intent to commit [the] theft before or during his . . . use of force." Model Jury Charge (Criminal), "Robbery in the First Degree" (2010).

Defendant also argues more generally that the victim's uncorroborated testimony regarding his presence at the scene of the crimes and his use of a weapon was insufficient for conviction. There is no requirement in the law, however, that additional witnesses be found or other corroborating evidence be presented when a victim testifies to a crime or other unlawful act and identifies the person responsible. See In re Samay, 166 N.J. 25, 31 (2001); In re Seaman, 133 N.J. 67, 82-83 (1993). It is for the jury to determine if the victim's testimony proves the defendant's guilt beyond a reasonable doubt. State v. Vandeweaghe, 351 N.J. Super. 467, 481 (App. Div. 2002) ("sole and exclusive province of the jury to determine the credibility of the testimony of a witness."), aff'd, 177 N.J. 229 (2003).


Defendant argues in Point III of his brief that the trial court erred in permitting Dr. Burns to testify as an expert witness about the recovery rate for elderly victims of head trauma. The following exchange occurred during the direct testimony of Dr. Burns:

Q: Okay. In evaluating and considering the conditions of the patient . . . while her stay in trauma, is that something that's a temporary loss, or is that something that is a protracted loss?

DR. BURNS: I see. Most . . . people . . . below [the age of forty], would probably recover . . . from these injuries fully. Some --DEFENSE ATTORNEY: Your Honor, I'm [going to] object. I think this calls for speculation.

COURT: Counsel, I'm [going to] permit it. He's indicating in his experience. He's . . . just talking about in his own experience.

DR. BURNS: In . . . an older . . . population, statistically, people that are injured badly enough to require . . . sustained auditory support, intensive care, . . . rarely have a complete recovery to . . . their previous level of function.

T.T. also testified that she continued to suffer from the injuries she sustained from the assault: "Till now, I still have the pain on my face. My head . . . the pain didn't completely go away. Right now, I still feel the pain."

At trial, defendant's objection was that Dr. Burns was speculating about the statistical recovery rates for older patients who had suffered traumatic injury. On appeal, defendant argues for the first time that the cited testimony was improper opinion testimony of an expert when Dr. Burns was not presented by the prosecution or qualified by the court as an expert witness. We agree with that argument, but we conclude that the brief opinion testimony referenced was harmless and could not have affected the jury's verdict.

The prosecution presented the challenged testimony as relevant to the severity of the victim's injuries and therefore to the degree of robbery and assault charges proven by the evidence. First-degree robbery can be proven by evidence that defendant inflicted "serious bodily injury" in the course of committing a theft. N.J.S.A. 2C:15-1b. Second-degree aggravated assault under N.J.S.A. 2C:12-1b(1) requires proof of "serious bodily injury." That phrase is defined in N.J.S.A. 2C:11-1b as "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ[.]"

As the victim's treating physician, Dr. Burns was permitted to state his opinions about his diagnosis of her injuries and her prognosis for recovery. Stigliano v. Connaught Labs., Inc., 140 N.J. 305, 313-14 (1995); Carchidi v. Iavicoli, 412 N.J. Super. 374, 381 (App. Div. 2010). In addition, through the fact testimony of Dr. Burns, as well as the testimony of the responders at the scene of the crime and the victim's own testimony, the State established that T.T. suffered head trauma, bleeding, bruises, and other injuries. Dr. Burns testified that she had a skull base fracture and multiple facial bone fractures and that "the front part of her face was broken off from the rest of her skull." A plastic surgeon performed surgery on her face, and she remained in the hospital to recover for more than six weeks. The victim herself testified that she continued to suffer pain at the time of trial. The factual testimony, which was properly admitted, clearly established "serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ."

Defendant also argues for the first time on appeal that the probative value of Dr. Burns's testimony concerning recovery rates for older patients was substantially outweighed by its prejudicial effect and should have been excluded under N.J.R.E. 403.

Appellate courts generally afford substantial deference to a trial court's discretionary evidentiary rulings. State v. Ramseur, 106 N.J. 123, 266 (1987); see Estate of Hanges v. Met. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010) (citing cases under several rules of evidence applying the abuse of discretion standard of review to the trial court's rulings). "The party seeking to preclude the admission of evidence pursuant to N.J.R.E. 403 has the burden of convincing the trial judge that the factors favoring exclusion substantially outweigh the probative value of the contested evidence." State v. Swint, 328 N.J. Super. 236, 253 (App. Div.), certif. denied, 165 N.J. 492 (2000). Admission of evidence challenged under N.J.R.E. 403 is subject to the abuse of discretion standard of review even where a proper objection is made to the trial judge. State v. Lykes, 192 N.J. 519, 534 (2007); Swint, supra, 328 N.J. Super. at 253.

We find no basis to disturb the jury's verdict on grounds of prejudicial evidence under N.J.R.E. 403. As we have stated, the graphic factual testimony about the victim's injuries was admissible and rendered the testimony about recovery rates for older persons superfluous to the State's proofs of serious bodily injury. The admission of Dr. Burns's testimony in that regard was not "clearly capable of producing an unjust result."

R. 2:10-2.


Finally, defendant challenges his seventeen-year sentence as excessive. He argues that the sentencing court misapplied relevant aggravating and mitigating factors under N.J.S.A. 2C:44-1 in determining the appropriate sentence.

In State v. Bieniek, 200 N.J. 601, 608 (2010), our Supreme Court reconfirmed that the role of an appellate court is not to substitute its judgment about an appropriate sentence for that of the sentencing judge. When the sentencing court adheres to the "sentencing principles set forth in the Code and defined in our case law, its discretion [is] immune from second-guessing." Id. at 612.

In this case, the court gave a detailed statement of reasons for the sentence imposed. It found applicable aggravating factor one, N.J.S.A. 2C:44-1a(1), the nature and circumstances of the offense, including whether the crime was committed in an especially heinous, cruel, or depraved manner; aggravating factor two, N.J.S.A. 2C:44-1a(2), the gravity and seriousness of harm inflicted on the victim, including whether defendant knew that the victim was particularly vulnerable or incapable of resistance because of advanced age; aggravating factor three, N.J.S.A. 2C:44-1a(3), the risk that defendant will commit another crime; aggravating factor six, N.J.S.A. 2C:44- 1a(6), the extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted; and aggravating factor nine, N.J.S.A. 2C:44-1a(9), the need to deter defendant and others from violating the law.

The court also granted defendant mitigating factor six, N.J.S.A. 2C:44-1b(6), that defendant would compensate the victim by way of restitution, although no restitution had been made at the time of sentencing. The trial judge fully explained his findings on the oral record and also attached a written statement of reasons for the sentence imposed.*fn4

The finding of aggravating factor six may be questionable because defendant's prior record, at the age of forty-nine, consisted only of convictions for violation of a municipal ordinance, burning trash, and fourth-degree wrongful impersonation. Nevertheless, because of the brutality of the beating of an elderly, helpless woman with a large garden tool, the aggravating factors as a whole clearly outweighed the one mitigating factor found by the court and justified the seventeen-year sentence.

We find no abuse of discretion or other reversible error in the sentence imposed. State v. Roth, 95 N.J. 334, 364-66 (1984).


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